was not made until January 28, 1999, it is outside of the one
year statute of limitations and, therefore, untimely.
With respect to the above-referenced calculations, the court
makes the following observations. First, the court notes that the
time period in between May 19, 1997, when Petitioner's Section
440 motion was first made, and March 17, 1998, when permission to
appeal the decision to the Appellate Division was denied,
includes time periods when no proceedings with respect to the
Section 440 motion were actually pending. This would include, for
example, the short periods of time in between the initial
decision on the Section 440 motion by the County Court and
Petitioner's filing of a motion to reargue. This also includes
the time period in between the denial of reargument and the
filing of an application for leave to appeal the decision on the
Section 440 motion to the Appellate Division.
Arguably, there was no motion "pending" and the AEDPA time
clock ran during these short time periods and was tolled again
only upon the filing of additional papers regarding the motion.
Because the petition is time-barred even if the AEDPA clock is
tolled during the entire period between May 19, 1997 and March
17, 1998, the court has considered the entire time period as a
period of toll, for ease of calculation. If this were a closer
case, the court would be required to decide whether the AEDPA
clock begins to run each time a decision is rendered on a
particular motion, and is stopped only when additional papers are
filed challenging the decision. Because such a determination is
not necessary to the decision here, the court need not express an
opinion on this issue at this time.
The court also notes that Respondent has calculated the AEDPA
time period as running out on January 1, 1999, as opposed to the
court's calculation of December 31, 1998. Because January 1, 1999
was a national holiday, followed by a weekend, the time in which
Petitioner was required to file his habeas petition would then
have been extended until January 4, 1999. In view of the fact
that the present petition is time-barred under either the court's
or Respondent's calculation, the court need not resolve this one
Finally, the court addresses Petitioner's argument that he did
not receive actual notice of the December 7, 1998 decision of the
Appellate Division until approximately two weeks after the
decision was rendered. Petitioner argues that the AEDPA time
clock should not begin to run until he had actual notice of the
state court determination on his motion.
There is no provision in AEDPA that extends the toll of the
statute of limitations until actual notice is received. The
statute tolls the statute of limitations only during the time
when a motion is actually "pending." See
28 U.S.C. § 2244(d)(2). Once a decision is rendered, the motion is no longer
pending. The court also notes that this final time period would
not have been so critical to Petitioner had he not waited almost
the entire 365 days granted by AEDPA in which to engage in
post-conviction motion practice. As noted above, a full 238 days
ran on the AEDPA one year statute of limitations before
Petitioner began to engage in motion practice seeking
post-conviction relief. An additional 103 days ran in between
motions for such relief. Under these circumstances, there is
certainly no reason to extend the AEDPA statutory toll beyond the
time when a motion is actually pending.
For the foregoing reasons, the Petition for habeas corpus
relief is dismissed as untimely. The Clerk of the Court is
directed to close this case.
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